Case Number: BC535843 Hearing Date: May 14, 2014 Dept: 34

Defendants’ Motion to Compel Arbitration and for a Stay of the Judicial Proceedings is DENIED.

BACKGROUND:

Plaintiff commenced this action on 2/10/14 against defendants for: (1) disability discrimination, failure to accommodate, failure to engage in the interactive process (FEHA); (2) wrongful termination; (3) violation of Lab. Code § 1102.5; (4) IIED; and (5) NIED. Plaintiff was hired by defendant in March 2012. (Compl., ¶ 6.) In August 2012 plaintiff suffered an ankle injury which impaired her mobility. (Id., ¶ 8.) Plaintiff alleges defendants failed to accommodate her disability and disregarded her complaints. (Id., ¶¶ 9-13.) Plaintiff was terminated on November 27, 2012. (Id., ¶ 14.)

ANALYSIS:

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Cal. Code of Civ. Proc, §1281.) Section 1281.2 of the Code of Civil Procedure states in pertinent part:

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.

(Cal. Code Civ. Proc., §. 1281.2.)

In deciding a petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue of whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocer Co. (2004) 118 Cal.App.4th 955, 961.) “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. No jury trial is available for a petition to compel arbitration.” (Engalla v. Permanente Medical Group, Inc.(2007) 15 Cal.4th 951, 972 [citations omitted].)

Defendants Have Not Met Their Burden to Show That an Enforceable Arbitration Agreement Exists

Defendants provide a copy of a mutual agreement to arbitrate which was signed by plaintiff. This agreement provides:

We each hereby voluntarily promise and agree to arbitrate any claim covered by this Agreement, knowing that such is not a condition of employment or continued employment. We understand that arbitration is less expensive and is quicker than a court proceeding and based thereon wish to arbitrate the claims or disputes we may have. We further agree that such binding arbitration, pursuant to this Agreement shall be the sole and exclusive remedy for resolving any such claims or disputes, instead of any court action which is hereby expressly waived.

WE UNDERSTAND BY VOLUNTARILY AGREEING TO THIS BINDING ARBITRATION AGREEMENT, BOTH THE EMPLOYEE AND THE COMPANY GIVE UP OUR RIGHTS TO TRIAL BY JURY.

(Def. Exh. B, p. 1.)

In the opposition, plaintiff argues that defendants has not presented competent evidence of the agreement. The California Supreme Court has found that the “petitioner bears the burden of proving [the arbitration agreement’s] existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.

Defendants provide the declaration of Rafael Torres, a Banquet Manager at Specialty Restaurants Corporation. (Torres Decl., ¶ 2.) Torres maintains the personnel files of employees, including plaintiff’s personnel file. (Id., ¶ 3.) The files are maintained in the normal course of business. (Ibid.) Torres declares that plaintiff signed the agreement to arbitrate, and states that this agreement is attached as exhibit B. (Id., ¶ 4.) This is sufficient foundation for the Court to accept that Plaintiff signed Exh. B.

Although the alleged arbitration agreement was signed by Plaintiff, it was not signed by defendant. Although plaintiff’s signature appears to have been witnessed by one Leslie Carter, the agreement is not signed by anyone on behalf of the company.

Further, the arbitration agreement is not dated.

Prior to plaintiff’s employment, she received an employment offer dated March 28, 2012. That letter states, in relevant part:

“This letter, in conjunction with our employee handbook and company policies, contains the entire agreement with respect to your employment. It supersedes any and all other agreements, either oral or in writing, with respect lo the employment relationship. You and the Company acknowledge, and agree that no representations, inducements, promises or agreements, oral or otherwise have been made between you or the Company, or anyone acting on behalf of you or the Company, that are not included in this letter. You and the Company acknowledge and agree that no other agreement, statement or promise not included in this letter shall be valid or binding. The terms of your employment, as set out in this letter, may not be modified or amended by oral agreement or course of conduct, but only by an agreement in writing signed by both you and an Officer of Specialty Restaurants Corporation.” (Pl. Exh. A, p. 2.)

On April 19, 2012, Plaintiff signed an “At-Will Statement.” (D Exh. A.) After defining “at-will,” the first substantive paragraph of the At-Will Statement proclaims that “This statement contains the entire agreement with respect to any individual’s employment with Specialty Restaurants Corporation.” (Id.)

The At-Will Statement the proceeds to reiterate two of the terms contained in the Employment Offer Letter. According to the At-Will Statement:

“You and S.R.C. acknowledge and agree that no other agreement, statement or promise shall be valid or binding. The terms of your employment, as set out in this statement, may not be modified or amended by oral agreement or course of conduct, but only by an agreement in writing signed by both you and an Officer of Specialty Restaurants Corporation.” (Id.)

To summarize, the At-Will Statement, which was drafted by defendants, “contains the entire agreement with respect to any individual’s employment with Specialty Restaurants Corporation.” (Id.) The At-Will Statement emphasizes this fact by stating that “no other agreement, statement or promise shall be valid or binding.” (Id.) The only way to modify or amend this agreement is “by an agreement in writing signed by both [plaintiff] and an Officer of Specialty Restaurants Corporation.” (Id.)

Simply put, the document entitled “Mutual Agreement to Arbitrate” was not signed by “an Officer of Specialty Restaurants Corporation.” According to Defendants, “both documents are customarily given together to employees at the time of their hire.” (Torres Declaration, ¶ 4.) The Court believes it likely that the At-Will Statement was signed prior to the signing of the Mutual Agreement to Arbitrate – that is normally the way these documents are signed upon hire. The court recognizes, of course, that it has no evidence of which document was signed first by plaintiff. However, the burden is on defendants to show that after the March 28, 2012 Employment Offer Letter and the April 19, 2012 At-Will Statement, the undated Mutual Agreement to Arbitrate is binding.

Defendants have not met their burden.

Since there is no binding arbitration agreement, the court need not reach the issue of whether the agreement is procedurally and/or substantively unconscionable.